[No 3]
[2009] WASC 42
•13 FEBRUARY 2009
RE THE BELL GROUP LTD (in liq) (ACN 008 666 993); EX PARTE WOODINGS (in his capacity as one of the joint liquidators of THE BELL GROUP LTD (in liq) (ACN 008 666 993) [No 3] [2009] WASC 42
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2009] WASC 42 | |
| Case No: | COR:108/1991 | 13 FEBRUARY 2009 | |
| Coram: | HASLUCK J | 13/02/09 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application for suppression order allowed | ||
| B | |||
| PDF Version |
| Parties: | ANTONY LESLIE JOHN WOODINGS (in his capacity as one of the joint liquidators of THE BELL GROUP LTD (in liq) (ACN 008 666 993) ANTONY LESLIE JOHN WOODINGS (in his capacity as liquidator of BELL GROUP FINANCE PTY LTD (in liq) ACN 009 165 182) |
Catchwords: | Corporations Application by liquidator for directions arising from winding up Order sought to exclude parties and public from hearing to preserve confidentiality of funding arrangements Proposed order held to be in the interests of justice |
Legislation: | Corporations Act 2001 (Cth), s 479(3) |
Case References: | Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Re Bromfield ex parte WA Newspapers (1991) 6 WAR 153 Re The Bell Group Ltd (in liq) Ex parte West Australian Newspapers Ltd [2000] WASC 94 TK v Australian Red Cross Society (1989) 1 WAR 335 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- THE BELL GROUP LTD (In Liq) (ACN 008 666 993)
ANTONY LESLIE JOHN WOODINGS (in his capacity as one of the joint liquidators of THE BELL GROUP LTD (in liq) (ACN 008 666 993)
Applicant
- BELL GROUP FINANCE PTY LTD (in liq) (ACN 009 165 182)
- Applicant
(Page 2)
Catchwords:
Corporations - Application by liquidator for directions arising from winding up - Order sought to exclude parties and public from hearing to preserve confidentiality of funding arrangements - Proposed order held to be in the interests of justice
Legislation:
Corporations Act 2001 (Cth), s 479(3)
Result:
Application for suppression order allowed
Category: B
Representation:
COR 108 of 1991
Counsel:
Applicant : Mr J C Vaughan
Solicitors:
Applicant : Christensen Vaughan
COR 11 of 1993
Counsel:
Applicant : Mr J C Vaughan
Solicitors:
Applicant : Christensen Vaughan
(Page 3)
Case(s) referred to in judgment(s):
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Re Bromfield Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153
Re The Bell Group Ltd (in liq) Ex parte West Australian Newspapers Ltd [2000] WASC 94
TK v Australian Red Cross Society (1989) 1 WAR 335
(Page 4)
1 HASLUCK J: The applicant in these proceedings is Antony Leslie John Woodings. He comes before the Court in his capacity as liquidator of Bell Group Finance Pty Ltd (in liq).
2 By interlocutory applications dated 11 February 2009 in COR 108 of 1991 and COR 11 of 1993 the applicant seeks certain orders and directions pursuant to s 479(3) of the Corporations Act 2001 (Cth). By that provision the liquidator of a company may apply to the Court for directions in relation to any particular matter arising under the winding up.
3 The orders sought described in summary form include an order that the application be heard at a hearing from which the public and the parties are excluded with the exception of the applicant and his legal representatives and necessary court staff. Provision is also made for certain incidental orders relating to the notion that the matter should proceed with provision for confidentiality.
4 Broadly described, it appears from the materials before me and discussion at the hearing that in this case directions are sought relating to the conduct of proceedings known as the Bell litigation and the variation of funding arrangements by which the costs of the proceedings are to be met. This necessitates confidential disclosures by Mr Woodings, the liquidator, as an officer of the Court as to his legal representation in relation to the conduct of the Bell proceedings and his intended activities and resourcing in relation to the future conduct of the proceedings.
5 It is a fundamental feature of the Australian judicial system that proceedings be conducted by a court which is and is seen to be independent and impartial and that those proceedings should, with strictly limited exceptions, be conducted in public, Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [63]. See also Seaman Civil Procedure in Western Australia, par 34.0.2. If, however, presence of the public or public knowledge is likely to defeat the paramount object of doing justice according to law, the Court is justified in proceeding in camera, TK v Australian Red Cross Society (1989) 1 WAR 335 at 336 and 341. It is a power to be exercised in exceptional circumstances in the interests of justice, Re Bromfield Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153 at 167.
6 The decided cases indicate that the interests of justice are the guiding principle on whether to make the exceptional order to prohibit the publication of reports of proceedings. An accepted category of case in
(Page 5)
- which the Court may make orders that proceedings be heard in camera with ongoing confidentiality restrictions is where a court appointed liquidator seeks directions concerning the conduct of the litigation.
7 The liquidator, being an officer of the Court, may need to disclose matters that are confidential between the liquidator and the Court relating to the conduct of the litigation. Those matters may be such that they should not be disclosed to the other party to that litigation. A public hearing is then not in the interests of the administration of justice, Re The Bell Group Ltd (in liq) Ex parte West Australian Newspapers Ltd [2000] WASC 94 at [10] to [13].
8 In my view, in the present case it would not be in the interests of the administration of justice for the matters the subject of the application before me to become public and inevitably come to the attention of the defendants in these proceedings.
9 Publicity concerning such matters could undermine the capacity of the applicant to press his case and it might also have a tendency to prolong and complicate the proceedings. It might also interfere with the process of the liquidator making a full disclosure to the Court in a fair and open manner. This would be detrimental to the winding up of the subject companies and to the public interest in having complex commercial litigation of this kind conducted and completed expeditiously.
10 Accordingly, for these reasons, I am prepared to make orders and directions of the kind sought by the applicant as to confidentiality in respect of the applications before me.
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